Pharmacies Face Off with Washington Over Drug Law

In summer 2006, a clerk at Ralph's Thriftway drugstore in Olympia, Wash., received a fateful phone call. A female customer asked if the store carried Plan B, an emergency contraceptive also known as the "morning after pill." The clerk called one of the owners of the pharmacy, Kevin Stormans, who said that they didn't have it in stock because customers hadn't asked for it.

After receiving a few similar calls, Stormans did some research to decide whether to start stocking Plan B. He decided that as a Protestant who believes life begins at conception, he couldn't sell the drug. He instructed pharmacists at the store to refer customers seeking the drug to one of the other 33 pharmacies within a five-mile radius of Ralph's. Soon, Ralph's was inundated with angry calls. Protestors from Planned Parenthood picketed the store and organized a boycott. The state pharmacy board investigated the store and its owners.

Eventually, Washington passed Administrative Code 246-869-010, which provides that "pharmacies have a duty to deliver lawfully prescribed drugs or devices to patients ... in a timely manner consistent with reasonable expectations for filling the prescription."

While on its face the law applied to all prescription medications and all pharmacies, Stormans believed it was aimed squarely at forcing him and other Christian pharmacy owners to distribute Plan B despite their religious convictions. Joined by two pharmacists whose jobs were threatened by the regulation, he sued to block its implementation.

The District Court for the Western District of Washington granted his request for a preliminary injunction on the law's enforcement in Stormans v. Selecky, and on May 1, the 9th Circuit upheld the injunction. The dispute and others like it place pharmacies in a tough position when trying to balance accommodation of employees' deeply held religious beliefs with state and federal laws.

"The state likes to say that this law is about preventing gender discrimination," says Kristen Waggoner, a partner at Ellis, Li & McKinstry. Waggoner represents the plaintiffs. "But Title VII is about protecting religious objectors as well as the other protected classes."

Free Exercise
Stormans challenged the law on four grounds: equal protection, free exercise of religion, due process and the supremacy clause. In its decision granting the injunction, the district court zeroed in on free exercise. It found that the law was subject to strict scrutiny because it "appears aimed at only a few drugs and the religious people who find them objectionable."

The district court said the regulations failed that test because they didn't serve a compelling state interest sufficient to override the burden they placed on religious pharmacists. Waggoner points out that Planned Parenthood, an intervener in the suit, couldn't produce one woman who had been unable to obtain Plan B due to a pharmacist's objection.

Not everyone agrees that the regulation runs afoul of employees' rights to free exercise of religion. In his dissent from the 9th Circuit's decision, Judge Wallace Tashima compared the pharmacy
regulations to a Florida law banning animal sacrifice.

The U.S. Supreme Court upheld the law in Church of the Lukumi Babalu Aye v. City of Hialeah because it regulated conduct rather than religious belief and was written in a manner that was neutral with regard to the religious motivation for the conduct. "Judge Tashima's dissent got it absolutely right," says Gretchen Borchelt, senior counsel at the National Women's Law Center, which advocates for policies that protect access to contraceptives. "The law is facially neutral, generally applicable and serves a legitimate purpose of ensuring patient access to lawful medication."

Employer Conflict
Beyond the debate about employees' free exercise rights, opponents of the Washington law say it presents a different legal problem for employers--a potential conflict with federal anti-discrimination laws. Title VII requires employers to make "reasonable accommodations" for employees' sincerely held religious beliefs insofar as such accommodations do not pose an undue hardship to the employer.

"Allowing pharmacists to refer the customer to another pharmacy was an accommodation that was already working," says Casey Mattox, counsel for the Center for Law & Religious Freedom, which filed an amicus brief in Stormans. "Now the state comes in and says you have to deny any accommodation. It creates a conflict between state and federal law that employers have to be
cautious about."

That potential conflict played a part in a similar case arising from an Illinois statute that required pharmacies to fill contraceptive prescriptions. In Menges v. Blagojevich, which was eventually
settled, an Illinois district court noted that the fact that an employer offered an accommodation in the past is strong evidence that that accommodation is indeed reasonable.

Meanwhile most large pharmacy chains have created internal policies that allow religious objectors to refuse to dispense drugs to which they object if another pharmacist is on hand to fill the prescription--something that the Washington law does not prohibit. Still, such an accommodation isn't possible for smaller stores which typically employ only one pharmacist at a time. That's the precise situation that led to Stormans v. Selecky.